MATTHEW IGBINOMWANHIA v. JOSEPH ISERIA & ORS (2014)

MATTHEW IGBINOMWANHIA v. JOSEPH ISERIA & ORS

(2014)LCN/7090(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of April, 2014

CA/B/174/2010

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

MATTHEW IGBINOMWANHIA Appellant(s)

AND

1. JOSEPH ISERIA
2. JOSEPH OKORO
3. ROSE OZEDU Respondent(s)

RATIO

THE MODE OF RAISING A PRELIMINARY OBJECTION

It is now the practice since the guide as to the mode of raising of a preliminary objection to appeal was provided or outlined by the Supreme Court in Charles Chikwendu Odedo v. INEC (2008) 7 SCNJ 1 at 25 and Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua & Ors. (2008) 5 SCNJ 1, to the effect that the preliminary objection can be raised in a respondent’s brief of argument under a conspicuous title – “PRELIMINARY OBJECTION” and followed by the grounds for the objection and argument in support thereof. Then at the service of the respondent’s brief on the appellant, the latter is obliged to file a Reply brief of argument wherein he ventilates his own position in reaction to the preliminary objection. And when the appeal comes up for hearing, the respondent must draw the attention of the court to the fact that he had filed a notice of preliminary objection to the hearing of the appeal. Furthermore, that he had incorporated his argument with respect to the preliminary objection in his brief of argument and which he must argue before the hearing of the main appeal. Thereafter, the appellant also argues his reaction in his reply brief of argument to the preliminary objection before he proceeds to argue the appeal proper. It is noteworthy that even prior to Odedo v. INEC (supra) the party who raised the preliminary objection in his brief of argument, must pray the court for leave to move the objection at the commencement of the oral hearing of the appeal. Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616; (2005) 129 LRCN 1833; Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt. 539) 618; Arewa iles Plc v. Abdullahi & Brothers Musawa Ltd. (1998) 5 NWLR (Pt. 554) 508; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Ajide v. Kelaui (1985) 3 NWLR (Pt. 12) 248. Further see Mrs. Mary Wilkey v. Mrs. Ogbohu Ogiegbaen & Anor (2014) All FWLR (Pt. 172) 1700 at 1714-1715; Fayose v. Independent Communication Network & Ors. (2012) 10 WRN 147 at 167 158; Dr. Erastus Akingbola v. Economic & Financial Crimes Commission (2012) 9 NWLR (Pt. 1306) 475 at 497. PER YAKUBU, J.C.A.

WHETHER OR NOT A COURT CAN DECIDE IN AN INTERLOCUTORY APPLICATION THE SAME AS IT WERE IN A SUBSTANTIVE APPEAL

A court cannot, in an interlocutory application, such as that by the respondents which is similar in contents and effect with the appellant’s appeal, decide on the same as it were in the substantive appeal. Shining Star Nig. Ltd. & Anor. v. Ask Steel Nig. Ltd. & Ors. (2011) 1 SCNJ 31 at 47; ACB Ltd. v. Awogboro (1996) 3 NWLR (Pt. 437) 383; Amira v. Alao (1995) 7 NWLR (Pt. 409) 623; Akapo v. Hakeem (1992) 6 NWLR (Pt. 249) 266. PER YAKUBU, J.C.A.

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling): This is an interlocutory appeal from the decision of the Edo State Customary Court of Appeal holden at Benin City on 6th April, 2009.

The appellant was the plaintiff at the District Customary Court, Urhonigbe in Suit No. UR/DCC/18/2002. He claimed the sum of N50,000.00 (Fifty Thousand Naira) only being the cost of damages to his palm trees and trespass into his land situate at Isi-emango/Isiyin Okhanuwa in Okaligban farmland Urhonigbe. The suit was transferred to the Orhionmwon Area Customary Court, holden at Abudu, which granted the claim of the appellant.

The respondents who were the defendants at the trial Orhionwon Area Customary Court, Abudu, not being satisfied with the judgment against them appealed to the Edo State Customary Court of Appeal, holden at Benin City, vide the appeal No. CCA/7A/2007. Their appeal was anchored on three grounds, to wit:

“GROUND 1
The learned trial President and members of the Orhionmwon Area Customary Court, Abudu, erred in law (Customary) when it gave judgment to the plaintiff.

PARTICULARS OF ERROR
When the area in dispute was not defined or ascertained or the boundaries of the land being claimed by the plaintiff could not be ascertained from the case of the plaintiff.

GROUND 2
That the court erred in law when it held that there was contradictions in the evidence of the Defendant’s case.

PARTICULARS OF ERROR
(a) When in land cases the Plaintiff will only succeed on the strength of his own case and not on the weakness of the Defendant’s case.
(b) When there was no material contradictions in the Defendant’s case.

GROUND 3
The judgment of the court is perverse.

PARTICULARS OF ERROR
When the court did not properly evaluate the evidence led before it and in not understanding the rules in such situation.”

The appellant filed a notice of preliminary objection, to the hearing of the respondents’ appeal, at the Edo State Customary Court of Appeal, Benin City to be referred to hereafter simply as the court below. The gravamen of the appellant’s preliminary objection at the court below, was that none of the three grounds of appeal (supra) at the instance of the respondents, had anything to do with the question of customary law.

Learned counsel to both parties at the court below, filed and exchanged written addresses, with respect to the aforementioned preliminary objection. In its ruling on the said preliminary objection, the court below on 6th April, 2009 held that: “all the grounds of appeal are cognisable before this court”. Hence the appellant’s preliminary objection was overruled as being misconceived. The appeal was then adjourned for hearing. This was why the appellant appealed to this court on 16th April, 2009.

The appeal was erected on two grounds, namely:

“(i) The court erred in law in holding that it has jurisdiction to hear and determine appeal from the Area Customary Court, Abudu, on issues which are not questions of customary law.
(ii) The court erred in law in not pronouncing in ground 2 of the Respondent/Appellant’s Preliminary Objection to which the Appellants/Respondents entirely conceded and this led to gross miscarriage of justice.”

The appellant in pursuing the prosecution of the appeal was armed with his brief of argument dated and filed on 30th June, 2010. He nominated a sole issue for the determination of the appeal, thus:
“Whether Respondents’ grounds of appeal to the Edo State Customary Court of Appeal, Benin City from the Area Customary Court, Abudu raised questions of customary law as to make all the grounds cognisable to the Court. If this question is answered in the negative, can the Respondents’ appeal of the Edo State Customary Court of Appeal, Benin City continue to be pending?”

The respondents on 5th May, 2011 filed a notice of preliminary objection to the hearing of the appeal, on the grounds:
“1. That the appeal is incompetent in that it does not involve any question of customary law as provided for under Section 245 of the Constitution of the Federal Republic of Nigeria as amended in 2011.
2. That the Grounds of Appeal as contained in the Notice of Appeal does not involve any question of Customary law thereby robbing this Honourable Court of jurisdiction.”

There is a brief of argument by the respondents in support of the preliminary objection. There is no brief of argument filed by the respondents, in response to the appellant’s brief of argument on the appeal.

The appellant, filed a Reply dated 1st November, 2011; on the same date, to the respondents’ preliminary objection.

This ruling is with respect to the respondents’ notice of preliminary objection. By virtue of Order 10 r. 1 of the Court of Appeal Rules, 2011, a respondent who intends to raise a preliminary objection to the hearing of the appeal, must give three clear days notice thereof to the appellant, prior to the hearing of the appeal. The essence of this is to enable the appellant react to the objection at the hearing of the appeal.

In the instant appeal, the respondents clearly complied with the rules of this court when they raised their preliminary objection. Although the preliminary objection was not expressly made pursuant to Order 10 r 1 of the Rules of this court, in essence, that is the purport of the application. However, the respondents did not file a brief of argument in response to the appellant’s brief of argument. A fortiori, the preliminary objection was not incorporated in a brief of argument.

At the hearing of the appeal on 10th February, 2014; P.E. Odaro, Esq., learned respondents’ counsel, duly called the court’s attention to the preliminary objection dated and filed on 5th May, 2011. He adopted the written address, filed in support of the preliminary objection and urged that the appeal be struck out.

On his part, Mr. Isetin, learned appellant’s counsel relied on the Reply brief of argument dated and filed on 1st November, 2011 which he adopted and urged that the respondents’ preliminary objection, be dismissed.

The issue nominated for determination of the preliminary objection by the respondents, is whether the appellant/respondent’s two grounds of appeal herein, are with respect to issues of customary law.

It is the contention of learned respondents’ counsel that the two grounds of appeal by the appellant herein, do not relate to any question of customary law nor on any such matter prescribed by an Act of the National Assembly. He relied on Shelion & Anor. v. Fwendion Gobang (2009) 173 LRCN 36 at 51; Customary Court of Appeal, Edo State v. Chief (Engr.) E. A. Aguele & Ors. (2007) 1 FWLR (Pt. ?) 1047 at 1065-1067.

The appellant’s learned counsel in his Reply contended that the respondents’ preliminary objection is misconceived and baseless because according to him, the substantive appeal to which the respondents are objecting, is a complaint against the ruling of the court below which assumed jurisdiction over the respondents’ appeal at that court which allegedly did not pertain to any question of customary law.

I have perused the record of appeal. It is clear to me that the appellant being the respondent at the court below, had challenged the competency of the three grounds of appeal at the instance of the respondents who were the appellants in that court. He filed a preliminary objection to the hearing of the respondents’ appeal, on the ground that their grounds of appeal and the particulars thereunder, raised no questions or issues of customary law. See pages 4-17 of the record of appeal. The ruling of the court below on the preliminary objection is at pages 19-22 of the record of appeal, wherein, the said preliminary objection was overruled. Hence the appeal against the said ruling, to this court, by the appellant.
I am satisfied that the ruling of the court below, pertained to a determination of whether or not the respondents’ grounds of appeal raised questions of issues bordering on customary law. At page 21 of the record of appeal, the learned judges of the court below said, to wit:

“We have carefully examined all their grounds of appeal and are satisfied that all the grounds of appeal are cognisable before this court. It is now settled law that a customary court is enjoined to determine whether a party has successfully proved its case. See for example, the dicta of Uwaifo, J.S.C. in Hirnor v. Yengo (2003) 9 NWLR (Pt. 824) 77 r. 5 at 84. The evaluation of evidence in (sic) (is) a proper function of any trial court and the exclusion of same will work manifest injustice.”

Essentially, the learned judges of the court below decided that they had the jurisdiction to entertain the appeal of the respondents who were the appellants before them. That being the position of things, the challenge of the appellant herein, is against the decision of the court below for assuming jurisdiction over the respondents’ appeal. In the circumstance, the grounds of appeal at the instance of the appellant herein, is a direct affront to the decision of the court below for assuming jurisdiction over the respondent’s appeal.

I am afraid the respondents have clearly mis-apprehended the appellant’s grounds of appeal. The preliminary objection at the instance of the respondents is manifestly intended to take the wind out of the sail of the appellant’s appeal. A court cannot, in an interlocutory application, such as that by the respondents which is similar in contents and effect with the appellant’s appeal, decide on the same as it were in the substantive appeal. Shining Star Nig. Ltd. & Anor. v. Ask Steel Nig. Ltd. & Ors. (2011) 1 SCNJ 31 at 47; ACB Ltd. v. Awogboro (1996) 3 NWLR (Pt. 437) 383; Amira v. Alao (1995) 7 NWLR (Pt. 409) 623; Akapo v. Hakeem (1992) 6 NWLR (Pt. 249) 266.

A determination of the respondents’ application would unwittingly be tantamount to a determination of the same question of the propriety of the grounds of appeal from the trial customary court by the court below, which is yet to be heard by this court.

The application is ill-conceived. I, without further ado, dismiss it as grossly lacking in merits.

The appellant’s two grounds of appeal are not incompetent. The appeal shall proceed to hearing on the merits, accordingly.

No order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I am in complete agreement with his reasoning and conclusion that the preliminary objection to the interlocutory appeal is completely misconceived. Suffice it to say however that this case started at the customary court sometime in 2006. Judgment by the Orhionmwon Area Customary Court, Abudu, Edo State was delivered since 28th day of April, 2006. The claim at the trial court was for the sum of N50,000.00 (Fifty Thousand Naira) for trespass to a parcel of farm land situate at Isi-Emango/Isiyin Okhanuwa in Okaligban land in Urhonigbe. By one form of preliminary objection or the other from counsel, the appeal before the Edo State Customary Court of Appeal is yet to be heard. The issue of that court’s jurisdiction being on appeal to this court.

This is the type of case that gives the administration of justice a bad name by its convoluted and unnecessary delay. Counsel would do better to face the adversary squarely rather than chasing shadows. The appellant’s grounds are competent. I also make no order as to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Ruling prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has clearly dealt with the preliminary objection before the Court as appropriate in the Ruling. I cannot but agree with his lordship that the preliminary objection is ill-conceived.

The Respondents in raising the preliminary objection to the instant appeal would appear not to have given any thought to what the success of the objection portends for their own appeal before the lower court. The Respondents herein are the appellants before the lower court – Edo State Customary Court of Appeal, Benin City. They are aggrieved with the decision of the trial customary court given in favour of the instant Appellant (who was the plaintiff before the trial customary court) and appealed against the same to the lower court. The instant Appellant as Respondent in the appeal before the lower court challenged the competence of the appeal on the ground that none of the grounds of appeal has to do with customary law. The lower court overruled the preliminary objection of the Appellant who was respondent before the lower court. The Appellant being aggrieved by the decision of the lower court appealed to this court against that ruling only for the Respondents to raise the instant preliminary objection to the appeal on the ground that the instant appeal (which is against the ruling of the lower court to the effect that their own appeal is in relation to customary law), is not competent as the instant appeal does not raise or involve any question of customary law.

The Respondents would appear to have lost sight of the fact that an appeal has as its foundation the very case in which the appeal has been lodged. Where an appeal is against the decision of an appellate court such as the lower court, the basis of the “double appeal” as it were, is equally the original case before the trial court. Hence the position of the law that an appeal though a fresh action is a continuation of the original suit.

The lower court in its ruling appeal against, found to the effect that all the grounds of appeal before it in Respondents’ appeal on the Appellant’s suit before the trial customary court relate to customary law. It would therefore appear obvious that a challenge that the instant appeal, is not competent before this court on the ground that the appeal does not raise or involve any question of customary a fortiori is an indication that the appeal before the lower court itself is indeed not in relation to customary law. A position which is clearly antithetical to the position to be maintained by a respondent to an appeal inasmuch as the respondent is enjoined to support the judgment appealed against in the absence of a cross-appeal.

It is against the backdrop of all that has been said above, and the fuller reasoning of my brother in the lead Ruling, that I too find no merit in the preliminary objection and hereby overrule it. Accordingly, the instant appeal shall proceed to hearing on the grounds of appeal before the Court.

Appearances

B. E. Iseti, Esq.For Appellant

AND

P. E. Odaro, Esq.For Respondent